Opinion
CASE NO. 2:14-CV-812
06-30-2015
KENNETH MARSHALL, Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.
Magistrate Judge Elizabeth P. Deavers
OPINION AND ORDER
On June 9, 2015, the Magistrate Judge issued a Report and Recommendation denying Petitioner's Motion for Relief from Judgment and "Rule 54 Judgment on the Pleadings", and recommending that Respondent's Motion to Dismiss be granted. Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation.
Petitioner maintains that he has provided the state courts an adequate opportunity to review his claims. He claims that he is being denied appellate review due to his indigent status. He contends that the denial of counsel excuses his failure to exhaust state court remedies.
As discussed by the Magistrate Judge, however, Petitioner must present his claims to the state's highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). He has not done so. He may still pursue a delayed appeal in the Ohio Supreme Court. Further, Petitioner has no Sixth Amendment right to counsel in connection with the discretionary appeal to the Ohio Supreme Court. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ("[T]he right to appointed counsel extends to the first appeal of right, and no further.").
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Petitioner's Objection, ECF 31, is OVERRULED. The Report and Recommendation, ECF 29, is ADOPTED and AFFIRMED. Petitioner's Motion for Relief from Judgment and "Rule 54 Judgment on the Pleadings" are DENIED. Respondent's Motion to Dismiss is GRANTED. This action is hereby DISMISSED.
IT IS SO ORDERED.
/s/ GREGORY L. FROST
GREGORY L. FROST
United States District Judge